425 N.E.2d 810 (N.Y. 1981), the New York Court of Appeals was faced with an insurance policy that explicitly covered "assault." The insurer in that case urged that, on public policy grounds, the Court should not enforce the contract where a dentist sought indemnification for liability resulting from a sexual assault on his patient. The Court found that the explicit term "assault" in this policy covered the sexual assault, and declined to void the contract. Because the term "assault" does not appear in the National Union's policy, and that was the sole basis for the Goldfarb decision.
An earlier case in the New York Supreme Court comes somewhat closer to the case at bar. Hartogs v. Employers Mutual Liability Ins. Co. of Wisc., 89 Misc. 2d 468, 391 N.Y.S.2d 962 (Sup. Ct., N.Y. City 1977). In Hartogs, the trial court interpreted a policy that did not explicitly include "assault." It held that where a psychiatrist had sex with his lesbian patient under the guise of "therapy," it was untenable to assume that the psychiatrist thought he was giving medical treatment. It therefore held that the policy did not apply, and the defendant could not therefore claim indemnification for losses sustained in defending the suit.
Numerous courts in other states have provided thoughtful opinions on this issue in recent years. The preponderance of cases involve psychiatrists who have had sex with their patients and are subsequently sued for malpractice. The majority rule is that the insurer is liable in those cases. See, e.g., St. Paul Fire & Marine Ins. Co. v. Love, 459 N.W.2d 698 (Minn. 1990); Zipkin v. Freeman, 436 S.W.2d 753 (Mo. 1968); L.L. v. Medical Protective Co., 122 Wis. 2d 455, 362 N.W.2d 174 (Wis. 1984). The courts reason that where a psychiatrist has permitted his relationship with his patient to develop into a sexual relationship, he has mishandled the "transference" phenomenon that occurs in psychotherapy. Courts have found that the correct handling of the transference phenomenon is essential to good psychiatric care, and thus have held the psychiatrist's sexual conduct to be medical malpractice, or failure in the delivery of professional services. It is thus held to be covered. Id. at 700-702. A similar, transference-based theory leading to the imposition of liability on an insurer for a psychiatrist's misconduct was adopted by Judge Stanton of this District in Vigilant Ins. Co. v. Employers Ins. of Wausau, 626 F. Supp. 262 (S.D.N.Y. 1986).
By contrast, courts have tended not to impose liability on insurers where the sexual conduct of non-psychiatrists is involved. The rationale is typically articulated simply as: having sex with a patient is not a part of the delivery of professional services, or part of medical treatment. See, e.g., Smith v. St. Paul Fire & Marine Ins. Co., 353 N.W.2d 130 (Minn. 1984) (physician's sexual abuse of three boys not within policy); Hirst v. St. Paul Fire & Marine Ins. Co., 106 Idaho 792, 683 P.2d 440 (Ct. App. Idaho, 1984) (physician treating wrist injury, who drugged patient and performed sex on him, may not recover under liability policy); Standard Fire Ins. Co. v. Blakeslee, 54 Wash. App. 1, 771 P.2d 1172 (Wash. 1989) (dentist's sexual misconduct not covered from policy).
Thus, the prevailing view is that sexual conduct is not a medical incident for insurance purposes unless the physician is a psychiatrist and the sexual incident arises out of a therapeutic relationship. We begin by remarking that none of the cases we have reviewed in this area articulates a satisfactory distinction for treating the sexual misconduct of a psychiatrist differently from that of any other sort of physician. Each wrongdoer has used the unusual degree of access (whether psychological or physical) to intimate space conferred by the rendering of medical treatment to assist the wrongdoer in overcoming the patient's natural resistance to incursions into one's intimate space. Once such conduct is recognized as part of the delivery of professional services, it can become difficult to draw a line separating one type of misconduct from another, for purposes of insurance coverage.
Thus, it is not surprising that a court would find no meaningful distinction between mishandling the transference phenomenon and mishandling a person's genitals. In St. Paul Fire & Marine Ins. Co. v. Asbury, D.O., 149 Ariz. 565, 720 P.2d 540 (Ct. App. Ariz., Div. 2 1986) an insurer was held liable for damages resulting from a negligence suit brought by patients against their gynecologist. Each patient alleged that Dr. Asbury manipulated her clitoris sexually while he was performing gynecological examinations of her. The Asbury Court found that the sexual misconduct was inseparable from the medical examination and therefore covered under the policy. Id. at 542.
Plaintiff suggests that this Court use Asbury to frame a rule that sexual misconduct is a medical incident if (a) it arises out of psychiatric treatment or (b) it arises out of treatment of the erogenous zones. Pl.'s Reply Memorandum, at 7.
She then argues that because Major's sexual misconduct arose out of medical treatment of her breasts, that misconduct is a medical incident.
We reject the proposed rule for several reasons. First, we emphasize that the fundamental issue here is not whether the conduct in question is negligence, but whether a particular contract was intended to cover this conduct. The new rule suggested by plaintiff would be more appealing if raised in the context of the tort concept of malpractice, i.e., expanding the set of wrongs from which tort victims should be protected. However where, as here, the aim is to uncover the intent of the parties in using certain terms, expanding the meaning of those terms may have a tendency to lead away from the correct answer. In light of the case law set out above (with the exception of Asbury), it is likely that parties entering into medical insurance contracts are operating under the assumption that the sexual misconduct of psychiatrists is covered by malpractice insurance and the sexual misconduct of other insured physicians is not. It would decrease the likelihood of capturing the parties' intent to hold otherwise.
Second, we are hesitant to adopt a rule with such amorphous boundaries. We think it unworkable for courts to be placed in the position of deciding what constitutes a "sexual incident arising out of treatment of erogenous zones." Because of the subjectivity of the term "erogenous zone," courts are poorly situated to second guess litigants' accounts of what is or is not an erogenous zone in a particular case. The proposed rule would invite such disputes.
Third, even considered on its own right, we are not convinced of the merit of the proposed rule. We are sceptical of the suggestion, implicit in plaintiff's proposal, that a physician's duty to refrain from sexually abusing his (or her) patients is any greater in cases where the physician is treating the erogenous zones. Perhaps the patient's fear of such abuse is greater in such cases--and undoubtedly it is appalling when such fears are realized, as in this case. However, we think it no less appalling and no less a violation's of a physician's duty when, as in Hirst, for example, a person being treated for a wrist injury was drugged and sexually abused. We thus see no reason to carve out the class of exceptions proposed by plaintiff.
Finally, plaintiff suggests that defendant is liable because failure to see that defendant suffers no harm as a result of the anaesthetic is covered by the policy. Plaintiff cites no authority for this view,
and several prominent decisions decline to impose liability on the insurer where there was sexual abuse of a drugged patient. See, e.g., Hirst, supra; Blakselee, supra. Where, as here, the harm complained of is a result of undisputedly intentional conduct by the physician, it would be anomolous to consider the injury as "caused by" his negligent failure to save her from harm under anaesthesia.
Thus, we adhere to the majority view that sexual conduct is not a medical incident for insurance purposes unless the physician is a psychiatrist and the sexual incident arises out a therapeutic relationship. Applying this rule to the case at bar, we find that the events alleged in Snyder's complaint do not constitute a medical incident. We thus find that National Union is not liable for damages found against Major.
For the reasons stated above, the Court denies Snyder's motion for declaratory judgment and grants National Union's cross-motion for declaratory judgment that National Union is not liable for damages found against Major.
DATED: New York, New York
April 15, 1992
Kimba M. Wood
United States District Judge